In the last month, two more copyright lawsuits over city council videos have triggered my alerts. Both cases included a 512(f) claim, and both 512(f) claims survive the preliminary dismissal efforts.<\/p>\n Levy v. Kilgore<\/strong><\/a>, 2024 WL 5295080 (W.D. Tex. Dec. 14, 2024)<\/strong><\/p>\n A magistrate judge recommends sending a 512(f) case to trial. The court summarizes the facts:<\/p>\n The two videos at issue comprise excerpts from Lakeway City Council meetings and a presentation Kilgore<\/a> gave as mayor to Lakeway residents, sitting at a desk in front of United States and Texas flags. In the full version of the latter video, Kilgore begins: \u201cHey, good afternoon, Lakeway. It\u2019s Mayor Tom with another Mayor Facebook Live presentation to you, the residents of the City of Lakeway, best little city in West Travis County.\u201d<\/p>\n In his DMCA takedown notices, Kilgore states that, as the creator of the source video, he \u201cowns all rights to it,\u201d and refers to the disputed videos as \u201cthe infringing material.\u201d\u2026<\/p>\n Kilgore contends that he has a subjective, good-faith belief that he owns the copyrights.<\/p>\n<\/blockquote>\n If copyright law gives the mayor the ability to decide how constituents talk about his work, then Lakeway isn\u2019t the best little city in West Travis County or, for that matter, anywhere. (Travis County is part of the Austin metro area).<\/p>\n On the core scienter point, the court says: \u201cInquiry into the credibility of Kilgore\u2019s asserted subjective belief is appropriate for trial.\u201d Levy has an uphill battle establishing Kilgore\u2019s subjective belief for Section 512(f) purposes. However, based on the court\u2019s recounting, this case looks like it could be an example of using copyright as a memory hole<\/a> tool.<\/p>\n Levy<\/a> argued that Kilgore didn\u2019t consider fair use before sending the takedown notices. Kilgore responded:<\/p>\n Kilgore avers that he did consider fair use. \u201cI relied on the advice of counsel that [the] video in question infringed on my copyright and was not fair use.\u201d<\/p>\n<\/blockquote>\n Kilgore might need better legal advice on copyright law\u2026but also, see my post on the Lenz case<\/a> predicting that all 512(f) defendants had to do is say \u201cyeah, I thought about fair use\u201d and they would get a free pass.<\/p>\n The court accepts Levy\u2019s alleged damages (\u201cpaying to set up a website to host the videos after their takedown, paying a consultant to prepare counter-takedown notices, and incurring attorneys\u2019 fees\u201d) as sufficient to send to trial.<\/p>\n On January 6, 2025, the supervising judge summarily approved the magistrate judge\u2019s recommendations<\/a>.<\/p>\n Channel 781 News v. Waltham Community Access Corp., 2025 WL 35245 (D. Mass. Jan. 6, 2025)<\/strong><\/p>\n The court summarizes the facts:<\/p>\n Plaintiff Channel 781 News (\u201cChannel 781\u201d) operates a YouTube channel with videos of news about the City of Waltham, Massachusetts. Some of these videos are clips of meetings of the Waltham City Council that Channel 781 excerpts from recordings of the full meetings posted online by Defendant Waltham Community Access Corporation (\u201cWCAC\u201d). In September 2023, WCAC sent multiple takedown notices to YouTube claiming that Channel 781\u2019s videos amounted to copyright infringement. YouTube temporarily removed the videos and disabled Channel 781\u2019s channel.<\/p>\n<\/blockquote>\n WCAC describes itself as an \u201cindependent nonprofit corporation,\u201d not a government agency, which potentially changes the strength of its copyright claim. My position is that local governments can\u2019t claim copyright for records of official proceedings, like videos of city council meetings. However, when the government outsources the work to a third party, the analysis gets more complicated. On the surface, those third parties can generate copyrights just like any others. The policy outcomes, however, should be the same: copyright law should not inhibit people\u2019s access to government or ability to criticize the government.<\/p>\n Channel 781\u2019s 512(f) claim survives WCAC\u2019s motion to dismiss. On the scienter question, the court says:<\/p>\n Channel 781 alleges that before sending the takedown notices, WCAC stated that it would take action against those using its \u201ccontent to score political points\u201d or \u201cencourage residents to hate.\u201d In later discussions between the parties, Channel 781 explained why it believed its videos constituted fair use. WCAC responded that \u201cany use of the clips by Channel 781 required permission\u201d and that Channel 781\u2019s videos \u201cwould be more acceptable to WCAC if Channel 781 used them only to report facts, but not to express opinions or further an agenda.\u201d These allegations support a reasonable inference that WCAC sent the takedown notices based on factors other than a good faith belief that Channel 781\u2019s videos were not fair use and that WCAC\u2019s reuse policies sound dubious to me. At minimum, the policies are guaranteed to lead to arbitrary distinctions when WCAC decides to enforce its rights against reusers. The better policy outcome would be to blow up WCAC\u2019s copyright status so that they can\u2019t get into the business of using their purported copyright interests to pick winners-and-losers in citizens\u2019 or journalists\u2019 efforts to hold government accountable.<\/p>\n Prior Posts on Section 512(f)<\/strong><\/p>\n * Record Label Sends Bogus Takedown Notice, Defeats 512(f) Claim Anyway\u2013White v. UMG<\/a> As the maxim goes, all politics are local. A corollary is that few political disputes are as nasty or vitrolic as local politics. When local disputes devolve into total warfare, the parties grasp for any legal leverage against their sworn enemy. In those circusmtances, copyright law is an especially attractive tool to the pugilists, with […]<\/p>\n","protected":false},"author":1,"featured_media":23731,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[97],"tags":[16078,2177,16077,14399,13073],"dealstore":[],"offerexpiration":[],"class_list":["post-23730","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-legal","tag-battles","tag-city","tag-copyright","tag-council","tag-videos"],"yoast_head":"\n![\"\"](\"https:\/\/blog.ericgoldman.org\/wp-content\/uploads\/2018\/07\/zipper-mouth.png\")
<\/a>As the maxim goes, all politics are local. A corollary is that few political disputes are as nasty or vitrolic as local politics. When local disputes devolve into total warfare, the parties grasp for any legal leverage against their sworn enemy. In those circusmtances, copyright law is an especially attractive tool to the pugilists, with its strict liability standards, amorphous fair use boundaries, high defense costs, and effectiveness of takedown notices. I did a fairly lengthy blog post on the intersection of copyright law and city council videos<\/a> a decade ago; and see this piece by Frank LoMonte<\/a> about the intersection between copyright law and FOIA laws for government records.<\/p>\n\n
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WCAC knew it was doing so.<\/p>\n<\/blockquote>\n
*\u00a0Plaintiffs Make Some Progress in 512(f) Cases<\/a>
*\u00a0512(f) Doesn\u2019t Restrict Competitive Gaming of Search Results\u2013Source Capital v. Barrett Financial<\/a>
*\u00a0512(f) Once Again Ensnared in an Employment Ownership Dispute\u2013Shande v. Zoox<\/a>
*\u00a0Surprise! Another 512(f) Claim Fails\u2013Bored Ape Yacht Club v. Ripps<\/a>
*\u00a0You\u2019re a Fool if You Think You Can Win a 512(f) Case\u2013Security Police and Fire Professionals v. Maritas<\/a>
*\u00a0512(f) Plaintiff Must Pay $91k to the Defense\u2013Digital Marketing v. McCandless<\/a>
*\u00a0Anti-Circumvention Takedowns Aren\u2019t Covered by 512(f)\u2013Yout v. RIAA<\/a>
*\u00a011th Circuit UPHOLDS a 512(f) Plaintiff Win on Appeal\u2013Alper Automotive v. Day to Day Imports<\/a>
*\u00a0Court Mistakenly Thinks Copyright Owners Have a Duty to Police Infringement\u2013Sunny Factory v. Chen<\/a>
*\u00a0Another 512(f) Claim Fails\u2013Moonbug v. Babybus<\/a>
*\u00a0A 512(f) Plaintiff Wins at Trial!\u00a0![\"\ud83d\udc40\"\/](\"https:\/\/s.w.org\/images\/core\/emoji\/13.1.0\/svg\/1f440.svg\")
\u2013Alper Automotive v. Day to Day Imports<\/a>
*\u00a0Satirical Depiction in YouTube Video Gets Rough Treatment in Court<\/a>
*\u00a0512(f) Preempts Tortious Interference Claim\u2013Copy Me That v. This Old Gal<\/a>
*\u00a0512(f) Claim Against Robo-Notice Sender Can Proceed\u2013Enttech v. Okularity<\/a>
*\u00a0Copyright Plaintiffs Can\u2019t Figure Out What Copyrights They Own, Court Says \u00af\\_(\u30c4)_\/\u00af<\/a>
*\u00a0A 512(f) Case Leads to a Rare Damages Award (on a Default Judgment)\u2013California Beach v. Du<\/a>
*\u00a0512(f) Claim Survives Motion to Dismiss\u2013Brandyn Love v. Nuclear Blast America<\/a>
*\u00a0512(f) Claim Fails in the 11th Circuit\u2013Johnson v. New Destiny Christian Center<\/a>
*\u00a0Court Orders Rightsowner to Withdraw DMCA Takedown Notices Sent to Amazon\u2013Beyond Blond v. Heldman<\/a>
*\u00a0Another 512(f) Claim Fails\u2013Ningbo Mizhihe v Doe<\/a>
*\u00a0Video Excerpts Qualify as Fair Use (and Another 512(f) Claim Fails)\u2013Hughes v. Benjamin<\/a>
*\u00a0How Have Section 512(f) Cases Fared Since 2017? (Spoiler: Not Well)<\/a>
*\u00a0Another Section 512(f) Case Fails\u2013ISE v. Longarzo<\/a>
*\u00a0Another 512(f) Case Fails\u2013Handshoe v. Perret<\/a>
*\u00a0A DMCA Section 512(f) Case Survives Dismissal\u2013ISE v. Longarzo<\/a>
*\u00a0DMCA\u2019s Unhelpful 512(f) Preempts Helpful State Law Claims\u2013Stevens v. Vodka and Milk<\/a>
*\u00a0Section 512(f) Complaint Survives Motion to Dismiss\u2013Johnson v. New Destiny Church<\/a>
*\u00a0\u2018Reaction\u2019 Video Protected By Fair Use\u2013Hosseinzadeh v. Klein<\/a>
*\u00a09th Circuit Sides With Fair Use in Dancing Baby Takedown Case\u2013Lenz v. Universal<\/a>
*\u00a0Two 512(f) Rulings Where The Litigants Dispute Copyright Ownership<\/a>
*\u00a0It Takes a Default Judgment to Win a 17 USC 512(f) Case\u2013Automattic v. Steiner<\/a>
*\u00a0Vague Takedown Notice Targeting Facebook Page Results in Possible Liability\u2013CrossFit v. Alvies<\/a>
*\u00a0Another 512(f) Claim Fails\u2013Tuteur v. Crosley-Corcoran<\/a>
*\u00a017 USC 512(f) Is Dead\u2013Lenz v. Universal Music<\/a>
*\u00a0512(f) Plaintiff Can\u2019t Get Discovery to Back Up His Allegations of Bogus Takedowns\u2013Ouellette v. Viacom<\/a>
*\u00a0Updates on Transborder Copyright Enforcement Over \u201cGrandma Got Run Over by a Reindeer\u201d\u2013Shropshire v. Canning<\/a>
*\u00a017 USC 512(f) Preempts State Law Claims Over Bogus Copyright Takedown Notices\u2013Amaretto v. Ozimals<\/a>
*\u00a017 USC 512(f) Claim Against \u201cTwilight\u201d Studio Survives Motion to Dismiss\u2013Smith v. Summit Entertainment<\/a>
*\u00a0Cease & Desist Letter to iTunes Isn\u2019t Covered by 17 USC 512(f)\u2013Red Rock v. UMG<\/a>
*\u00a0Copyright Takedown Notice Isn\u2019t Actionable Unless There\u2019s an Actual Takedown\u2013Amaretto v. Ozimals<\/a>
*\u00a0Second Life Ordered to Stop Honoring a Copyright Owner\u2019s Takedown Notices\u2013Amaretto Ranch Breedables v. Ozimals<\/a>
*\u00a0Another Copyright Owner Sent a Defective Takedown Notice and Faced 512(f) Liability\u2013Rosen v. HSI<\/a>
*\u00a0Furniture Retailer Enjoined from Sending eBay VeRO Notices\u2013Design Furnishings v. Zen Path<\/a>
*\u00a0Disclosure of the Substance of Privileged Communications via Email, Blog, and Chat Results in Waiver \u2014 Lenz v. Universal<\/a>
*\u00a0YouTube Uploader Can\u2019t Sue Sender of Mistaken Takedown Notice\u2013Cabell v. Zimmerman<\/a>
*\u00a0Rare Ruling on Damages for Sending Bogus Copyright Takedown Notice\u2013Lenz v. Universal<\/a>
*\u00a0512(f) Claim Dismissed on Jurisdictional Grounds\u2013Project DoD v. Federici<\/a>
*\u00a0Biosafe-One v. Hawks Dismissed<\/a>
*\u00a0Michael Savage Takedown Letter Might Violate 512(f)\u2013Brave New Media v. Weiner<\/a>
*\u00a0Fair Use \u2013 It\u2019s the Law (for what it\u2019s worth)\u2013Lenz v. Universal<\/a>
*\u00a0Copyright Owner Enjoined from Sending DMCA Takedown Notices\u2013Biosafe-One v. Hawks<\/a>
*\u00a0New(ish) Report on 512 Takedown Notices<\/a>
*\u00a0Can 512(f) Support an Injunction? Novotny v. Chapman<\/a>
*\u00a0Allegedly Wrong VeRO Notice of Claimed Infringement Not Actionable\u2013Dudnikov v. MGA Entertainment<\/a><\/p>\n<\/div>\n\n","protected":false},"excerpt":{"rendered":"